Port Whitby Village Inc. o/a Richmond Hill Chrysler, Dodge, Jeep, Ram v. Registrar, Motor Vehicle Dealers Act, 2002, 2023 CanLII 34486

Licence Appeal Tribunal

Date: 2023-04-26

An appeal from a Notice of Proposal by the Registrar, Motor Vehicle Dealers Act, 2002, S.O. c. 30 Sch. B to revoke registrations

Between:

Port Whitby Village Inc. o/a Richmond Hill Chrysler, Dodge, Jeep, Ram and Joseph Anthony Sorbara

Appellants

-and-

Registrar, Motor Vehicle Dealers Act, 2002

Respondent

CONSENT ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

Date: April 26, 2023

BACKGROUND

1The appellant, Port Whitby Village Inc o\a Richmond Hill Chrysler, Dodge, Jeep Ram (“Richmond Hill”), is currently registered as a motor vehicle dealer under the Motor Vehicle Dealers Act, 2002, (the “Act”). It was originally registered on November 3, 2014.

2On February 7, 2023, the Registrar appointed under the Act, issued a Notice of Proposal to Revoke the registration of Richmond Hill on the basis they breached the conditions of their registration and to revoke the registration of Joseph Anthony Sorbara (“Mr. Sorbara”) on the basis that his past conduct is inconsistent with the intention and objective of the Act.

3The Notices of Proposal to Revoke the registrations have been appealed to the Tribunal.

4The parties advised the Tribunal that they had resolved the issues in dispute and both parties have consent to the continued registrations of Richmond Hill as a motor vehicle dealer and of Mr. Sorbara as motor vehicle salesperson under the Act on the terms and conditions set out in Schedule A signed by both parties April 24, 2023.

5Further, both parties confirmed that pursuant to section 4.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S 2 (the “SPPA”), both parties waive the requirements of a hearing and consent to an Order of the Tribunal to continue the appellants’ registrations on the terms and conditions set out on Schedule A. A copy of the agreement signed by both parties is attached as Schedule A to this Order.

ON CONSENT OF BOTH PARTIES, I ORDER:

6Pursuant to s. 4.1 of the SPPA and on the consent of the parties, I dispose of this proceeding without a hearing on the terms set out in the agreement signed by both parties on April 24, 2023, attached to this order as Schedule A, which Schedule A is incorporated and made part of this Order.

LICENCE APPEAL TRIBUNAL

____________________________

Jeffery Campbell, Vice-Chair

Released: April 26, 2023

(Schedule “A”)

Pursuant to subsection 6(2) of the Motor Vehicle Dealers Act, 2002 (the “MVDA”), Port Whitby Village Inc. o/a Richmond Hill Chrysler, Dodge, Jeep, Ram ("Richmond Hill Chrysler") and Joseph Anthony Sorbara ("Sorbara") (collectively, the “Registrants”) and the Registrar, Motor Vehicle Dealers Act, 2002, (the "Registrar”), in accordance with section 4.1 of the Statutory Powers Procedure Act, do hereby waive the requirements of a hearing and consent to an Order of the Licence Appeal Tribunal ("Consent Order") based upon the following terms and conditions:

1. The Registrar agrees that Richmond Hill Chrysler will be registered as a motor vehicle dealer and Sorbara will be registered as a motor vehicle salesperson for Richmond Hill Chrysler, subject to the requirements outlined in the MVDA and the terms and conditions contained herein.

2. In the event of a breach of any of the terms and conditions contained herein, the Registrar shall be permitted to rely on the 2021 Agreed Statement of Facts that the parties have entered into (the “2021 ASF”) as well as the contents of the Registrar’s 2023 Notice of Proposal in support of any future administrative proceedings, including, without limitation, any Proposal to Refuse to Renew, Suspend or Revoke Registration. The parties have agreed that the 2021 ASF will otherwise be treated by them as confidential.

3. The Registrants shall comply with all requirements of the MVDA and Ontario Regulation 333/08, the Code of Ethics in Ontario Regulation 332/08. The Registrants further agree to read all correspondence and bulletins from OMVIC, including all OMVIC guidelines, as released.

4. If Richmond Hill Chrysler sells an extended warranty to a purchaser of a motor vehicle who is not a registered dealer, it shall provide the warranty provider with all payments it has received from the purchaser for the warranty within seven days, pursuant to section 47 of Ontario Regulation 333/08.

5. The Registrants shall take all steps necessary to ensure that any vehicles they offer for sale are free of any liens or encumbrances, pursuant to section 13 of the Sales of Good Act, R.S.O. 1990, Ch S. 1, as amended.

6. Richmond Hill Chrysler shall arrange to remove any and all liens that are registered against both the vehicles they sell and the trade-ins they receive within 7 days of taking ownership of a vehicle.

7. On February 16, 2023, Richmond Hill Chrysler provided a $100,000 CAD letter of credit from a Canadian registered financial institution in favour of the Motor Vehicle Dealers Compensation Fund. Subject to OMVIC's Letter of Credit return process and the Registrar's approval, the Registrar will return the Letter of Credit to Richmond Hill Chrysler 2 years from the date it was received, on February 16, 2025. OMVIC’s return of the Letter of Credit shall not be unreasonably withheld or delayed.

8. For a period of 2 years from the date of this Consent Order, Richmond Hill Chrysler shall provide the Registrar with a copy of its financial statements no later than 120 days after completion of its fiscal year.

9. Richmond Hill Chrysler acknowledges that "trade" refers to buying, selling, leasing, advertising or exchanging an interest in a motor vehicle or negotiating or inducing or attempting to induce the buying, selling, leasing or exchanging of an interest in a motor vehicle as defined in the MVDA and pursuant to section 36 through to and including section 51 of Ontario Regulation 333/08; and is not limited to the signing of contracts. Richmond Hill Chrysler further acknowledges that this includes attendance at auction on behalf of Richmond Hill Chrysler and positions commonly referred to as Sales Manager, Finance and Insurance Manager, Branch Manager, Business Manager, General Manager or any individual who has supervisory authority over salespersons.

10. The Registrants will ensure that their registrations will not be used to trade in motor vehicles where the Registrants know, or ought to know, that trading motor vehicles will facilitate an illegal or unethical practice.

11. Richmond Hill Chrysler will ensure that all personnel, agents, assignees or anyone acting on behalf of Richmond Hill Chrysler are informed of the Terms and Conditions contained in this document to the extent necessary to ensure compliance with these Terms and Conditions.

12. Richmond Hill Chrysler will ensure that all personnel, agents, assignees or anyone acting on behalf of the Richmond Hill Chrysler to trade motor vehicles will be registered as a salesperson to Richmond Hill Chrysler.

13. While Sorbara is an officer and/or director of Richmond Hill Chrysler, Sorbara shall be responsible for ensuring Richmond Hill Chrysler's compliance with its conditions of registration and with the MVDA and the regulations made thereunder.

FINANCIAL RESPONSIBILITY

14. Richmond Hill Chrysler agrees not to receive any new sources of financing without the prior written approval of the Registrar. This does not apply where the dealer has applied on its own account and has obtained financing from a corporation registered under the Loan and Trust Corporations Act, The Bank Act or from a credit union or league to which the Credit Unions and Caisse Populaires Act applies.

15. Richmond Hill Chrysler shall maintain bank accounts that are compliant with section 59 of Ontario Regulation 333/08.

16. Richmond Hill Chrysler shall ensure that all bank transactions relate exclusively to the operation or financing of the business. The Registrants agree to notify the Registrar of any change in any business banking accounts.

17. Richmond Hill Chrysler shall comply with all federal, provincial and municipal tax obligations. Richmond Hill Chrysler shall ensure all required filings are current and submitted with required payments. All taxes collected are deemed to be trust funds and will not be used for any other purpose other than remittances to the federal, provincial and municipal governments.

18. Without limiting the generality of the foregoing and the Registrar's authority pursuant to the MVDA, Richmond Hill Chrysler and Sorbara each acknowledge that the Registrar may take further administrative action, including issuing a Proposal to Refuse to Renew, Suspend or Revoke Registration, should Richmond Hill Chrysler or Sorbara fail to comply with these conditions.

ACKNOWLEDGMENT AND UNDERTAKING:

19. The Registrar is relying on the accuracy and completeness of all documents, statements or information provided by the Registrants.

20. The Registrants acknowledge that the Registrar may take further administrative action, including a proposal to suspend or revoke registration, arising from any matters that have occurred or may occur related to honesty and integrity, financial responsibility or compliance with these terms and conditions.

21. Independent legal advice has been obtained or the Registrants have had the opportunity to obtain independent legal advice respecting consent to the Terms and Conditions contained in this document.

22. The Conditions contained in this document shall be in force for a period of two (2) years from the date of this Consent Order.

Port Whitby Village Inc.

o/a Richmond Hill Chrysler, Dodge, Jeep, Ram